Armageddon! Measuring the Power of a New Justice

WITHIN hours of Ronald Reagan's nomination of Robert H. Bork to the Supreme Court in 1987, Edward M. Kennedy issued an apocalyptic warning: "Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution."

Mr. Bork, of course, was rejected by the Democratic-controlled Senate.

Today, many of the same people who helped defeat Judge Bork are again predicting Armageddon if Judge Samuel A. Alito Jr. takes the Supreme Court seat now held by Justice Sandra Day O'Connor, the swing vote in many pivotal cases over the past two decades.

Ralph G. Neas, president of the People for the American Way and an outspoken critic of Judge Bork in 1987, warned last week of a "constitutional catastrophe" if Judge Alito is seated on the nation's highest tribunal. "He is a walking constitutional amendment who would undo precedents that protect fundamental rights and liberties that Americans think are theirs forever," Mr. Neas said. "The American people could wake up one morning and those liberties would no longer be there. It's that dramatic."

These hyperbolic words might be intended in part to rouse the opposition and raise money. But beneath the rhetoric is an assertion about the power of a single justice to wreak radical changes not just in American jurisprudence but in the American way of life itself. Is that a realistic possibility? Could one justice make such a difference, even if he is the swing vote on a closely divided Supreme Court?

A new justice certainly changes the character and dynamic of the court. And Judge Alito would be filling a second vacancy this year, joining the new chief justice, John G. Roberts Jr. This court will be considerably younger on average, and less predictable, at least for a time, than the one it replaces.

Conservative activists and scholars have expressed the hope that Justice Roberts and Judge Alito, if confirmed, will bring back what they call the authentic Constitution from the exile to which it has been consigned by justices appointed by presidents from Franklin Roosevelt to Bill Clinton.

For some liberal legal scholars, that prospect is a fear, not a hope. "Nothing is certain," said Bruce Ackerman, a professor at Yale Law School, "but the confirmation of Samuel Alito carries a clear and present danger of a constitutional revolution on a very broad front, well beyond Roe v. Wade."

But other legal scholars, both conservative and liberal, doubt that Judge Alito's confirmation alone would bring a legal revolution that would quickly and decisively affect the everyday lives of the citizenry.

Conservatives, for instance, have learned that it can be a fool's errand to predict the behavior of a justice once he or she wins a lifetime appointment to the Supreme Court. Justice Anthony M. Kennedy, who filled the seat Judge Bork was nominated for, and Justice David Souter, nominated by the first President Bush, have disappointed conservatives by migrating toward the liberal side of the bench.

"What you find is that the U.S. Supreme Court very seldom if ever marches very far from the conventional thinking of contemporary society," said Bruce Fein, a conservative legal commentator and a former Justice Department official in the Reagan administration. "They pay attention and are infected by mainstream thinking of what's moral and what's right and what's just."

Some liberal legal scholars also have doubts about the impact that a Justice Alito -- or any new member of the court -- could have. Although they acknowledge that the addition of a conservative justice is likely to skew a closely divided court to the right on some matters, there is still the matter of what that would mean practically. For instance, even if Roe v. Wade were overturned, said Richard D. Friedman, a law professor at the University of Michigan, the states would be free to allow abortions, and most would, with varying conditions.

Eugene Volokh, a conservative law professor at the University of California, Los Angeles, said the Supreme Court's effect on society is like that of a river on a delta, a slow accretion of sediment whose new contours are visible only over time.

"The changes are likely to be incremental, not vast," he said. "We are not going to see a radical reordering of society."

The slow pace of change on the court is by design. Lifetime appointments mean that philosophical shifts on the court generally occur over the span of several presidencies and reflect the gradual changes in society at large. Those shifts can accelerate when a president is given several seats to fill, as Roosevelt had in the late 1930's, and as President Bush may have if John Paul Stevens, at 85 the oldest justice, retires or dies while Mr. Bush is in office.

That would shift the court markedly to the right, said Jack M. Balkin, a law professor at Yale. If Judge Alito is confirmed, the swing justice would become Anthony M. Kennedy, but if Justice Stevens were to be replaced by a staunch conservative, the court could experience "a full-scale constitutional revolution," Mr. Balkin wrote last week in his Web log.

"For then," he said, "the median justices would be none other than John Roberts and Samuel Alito."

Jeffrey Segal, a Supreme Court analyst and chairman of the political science department at Stony Brook University in New York, said the impact of Judge Alito's joining the court would be felt most immediately in the areas of federalism and executive powers, important areas of the law that nonetheless do not have an immediate impact on people's lives. In his 15 years on the federal bench, Judge Alito has shown a willingness at times to question laws passed by Congress that reduce the power of the states, notably in a 1996 dissent over a federal bill regulating the sale of machine guns.

But even then, the balance of powers still comes into play. If the states have more power -- over abortion, the environment, affirmative action -- there is less chance that one sweeping vision will rule the country.

"Would Alito's confirmation change American life?" Professor Friedman said. "Hardly. Sam Alito doesn't get to write the laws. He only gets one vote that might ultimately mean that legislators get to write the laws."